Supreme Court of the ACT|2011-01-11

Helmhout v Apostoloff & Ors; Reynders v Commonwealth of Australia & Anor Dempsey-Fiddes v Commonwealth of Australia & Anor [2011] ACTSC 2 (11 January 2011)

DEMPSEY-FIDDES v COMMONWEALTH OF AUSTRALIA & ANOR;

PRACTICE AND PROCEDURE - representation - whether agent can appear for a corporation - principles to be considered - employee of corporation seeking leave to appear - applicant not permitted to appear

PRACTICE AND PROCEDURE - representation - intervention as amicus curiae - principles to be considered - journalist seeking to address relevant issues not addressed by parties - applicant permitted to address the court

PRACTICE AND PROCEDURE - pleadings - particulars pleading facts not evidence - whether supply of evidence proper delivery of particulars - not appropriate delivery of particulars

Legislation Act 2001 (ACT), s 144, Dictionary

Court Procedures Rules 2006 (ACT), rr 30, 406, 410, 433, 447, 2903, 6005, 6007, 6008, 6145, 6250

Attorney-General of Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch D 274

Wenlock v Maloney [1965] 2 All ER 871

O'Toole v Scott [1965] AC 939

Equitable Life Assurance Society v Cutter (1887) 4 WN (NSW) 60

Re Education Pty Ltd [1963] NSWR 1340

Federated Engine-Drivers and Firemen's Association of Australasia and Ors v Broken Hill Pty Co Ltd and Ors [1913] HCA 71; (1913) 16 CLR 245

Hubbard Association of Scientologists International v Anderson and Anor [1972] VicRp 37; [1972] VR 340

Molnar Engineering Pty Ltd v Burns [1984] FCA 232; (1984) 3 FCR 68

ACT General Cleaning Company Pty Ltd v Naoum [1996] FCA 1560; (1996) 67 FCR 361

Commonwealth Bank of Australia v Individual Homes Pty Ltd (1994) 119 ACTR 1

Co-operative Property Development of Australia Ltd and Ors v Mount and Ors (1980) Tas R 7

R v Pomeroy: The Herald and Weekly Times Intervening [2002] VSC 178

United States Tobacco Company v Minister for Consumer Affairs and Ors [1988] FCA 213; (1988) 20 FCR 520

Levy v State of Victoria and Ors (1997) 189 CLR 579

Hakimi v Legal Aid Commission (ACT) (2009) 227 FLR 462

Re Medical Assessment Panel; Ex parte Symons [2003] WASC 154; (2003) 27 WAR 242

Wilson v Manna Hill Mining Company Pty Ltd [2004] FCA 1663

National Australia Bank v Hokit Pty Ltd and Ors (1996) 39 NSWLR 377

Breen v Williams (1994) 35 NSWLR 522

Lukatela v Apostoloff [2009] ACTSC 167

Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1

R v O'Grady [2000] NSWSC 1256

R v Elomar and Ors (No. 3) [2008] NSWSC 1443

Williams v Wilcox and Anor [1838] EngR 305; (1838) 8 Ad & E 314; 112 ER 857

Philipps v Philipps (1878) 4 QBD 127

Allianz Australia Insurances Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144

Sims v Wran [1984] 1 NSWLR 317

Sportsbet Pty Ltd v State of New South Wales and Ors (No. 2) [2009] FCA 762

Bailey and Ors v Federal Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214

Goldsmith v Sandilands & Ors [2002] HCA 31; (2002) 190 ALR 370

Spedding v Fitzpatrick (1888) 38 Ch D 410

R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738

Pinson v Lloyd and National Provincial Foreign Bank Limited [1941] 2 KB 72

Sides Engineering Pty Ltd v Energetech Australia Pty Ltd [2005] FCA 1672

Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148

Conway v Mercedes-Benz Australia / Pacific Pty Ltd [2010] FCA 72

Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd [2006] FCA 1395

Visionmax Pty Ltd v Budget Specs (Franchising) Pty Ltd [2006] FCA 222

Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99

Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218

Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364

Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1

NRNQ (a limited partnership) v MEQ Nickel Pty Ltd [1991] 2 Qd R 592

Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574

Rupcic v AW Baulderstone Pty Ltd (1987) 46 SASR 99

Lincoln v Daniels [1962] 1 QB 237

Home Office v Harman [1983] 1 AC 280

Eastman v Chief Executive of the Department of Justice and Community Safety (2010) 4 ACTLR 161

Adams K, Grave G, Class Actions in Australia (Sydney: Lawbook Co, 2005

Cashman P, Class actions Law and Practice (Sydney: Federation Press, 2007)

Blackburn RA, Updating Court Procedures for the 1980s (1975) 49 ALJ 374

Davies J D QC, Updating Civil Court Procedures for the 1980s (1975) 49 ALJ 380

Sir Jack Jacob and I Goldrein, Pleadings: Principles and Practice (London: Sweet and Maxwell, 1990)

The time for service of the application in proceedings dated 24 December 2010 on the plaintiff be abridged to 24 December 2010.
Paragraph 18 of the statement of claim be struck out.
The copy of the CCTV footage referred to in that paragraph as annexed to the statement of claim be returned to the plaintiff forthwith.
The plaintiff file and serve an amended statement of claim in accordance with this order within 14 days.
Each party bear their own costs of the application.

The time for service of the application in proceedings dated 24 December 2010 on the plaintiff be abridged to 24 December 2010.
Paragraphs 18 and 19 of the statement of claim be struck out.
The copy of the CCTV footage referred to in that paragraph as annexed to the statement of claim be returned to the plaintiff forthwith.
The plaintiff file and serve an amended statement of claim in accordance with this order within 14 days.
Each party bear their own costs of the application.

The time for service of the application in proceedings dated 24 December 2010 on the plaintiff be abridged to 24 December 2010.
Paragraph 13 of the statement of claim be struck out.
The copy of the CCTV footage referred to in that paragraph as annexed to the statement of claim be returned to the plaintiff forthwith.
The plaintiff file and serve an amended statement of claim in accordance with this order within 14 days.
Each party bear their own costs of the application.

1. On 24 December 2010, an application in proceedings was filed in each of these matters and an urgent hearing was sought to argue that a paragraph or paragraphs of the statement of claim (paragraph 18 in Helmhout v Apostoloff & Ors, SC 847 of 2009 (Helmhout), paragraphs 18 and 19 in Reynders v Commonwealth of Australia & Anor, SC 544 of 2010 (Reynders) and paragraph 13 in Dempsey-Fiddes v Commonwealth of Australia & Anor, SC 549 of 2010 (Dempsey-Fiddes)) be struck out.

2. It is unusual for a pleading argument to be listed and heard after the end of the court term and as a matter of urgency. In this case, it is the context which provides the answer to that curiosity.

3. Helmhout was commenced when an originating claim was filed on 14 October 2009 in which the plaintiff sought damages for personal injury from a named police officer and the Commonwealth of Australia (the Commonwealth).

4. The statement of claim attached to the originating claim pleaded that the plaintiff had been taken by police officers to the City Watchhouse on or about 12 June 2006 and that the first defendant, then a police officer, had administered Oleoresin Capsicum spray to him which resulted in him allegedly suffering injuries, loss and damage. The claims of the plaintiff appear to be based on trespass to the person and breach of various statutory duties including under the Human Rights Act 2004 (ACT) to which the defendants were said to be subject. It is not necessary for the purposes of these applications to further dilate on those areas.

5. On 25 August 2010, the plaintiff applied to amend the originating claim and the statement of claim. The proposed amendment to the originating claim was to add a third defendant, another former police officer who, it was alleged, had also sprayed the plaintiff with Oleoresin Capsicum spray. It also proposed additional relief, seeking a number of declarations that the defendants had breached the plaintiff's human rights and had committed acts of torture on him. Some additional paragraphs were proposed to be added to the statement of claim. One of these is the subject of the present application.

6. The application was originally made to the registrar, who certainly had jurisdiction to hear and determine it: r 6250(1) of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules). It was, however, adjourned and then adjourned to the Master's list when, on 29 October 2010, the Master ordered that the third defendant be joined as a party and granted leave to amend the originating claim and the statement of claim in accordance with the draft attached to a letter which was included in a schedule of correspondence (rr 6005 and 6007(5)(e)(ii) of the Court Procedures Rules).

7. The hearing of the application took over an hour. Quite appropriately for the application, the Master did not deliver a written decision. I have read the transcript. Most of the argument concerned whether the action against the defendant sought to be added was statute-barred and whether this should be determined on the application to add him. As to the amendments proposed to the statement of claim, counsel for the Commonwealth submitted "in relation to the amendment brought against us, my instructions are neither to consent nor oppose". In the light of this application, that may have been a rather cavalier response.

8. The Master then made the orders permitting all the amendments and gave consequent directions. The amended originating claim and statement of claim were filed on 29 October 2010 in accordance with the Master's order. I assume they were then served also in accordance with the order. They certainly were served: see [24] below.

9. As a result of the order, the amended statement of claim now included the following paragraphs:

Prior to the first defendant spraying the plaintiff with OC spray, the third defendant sprayed OC spray on the plaintiff's face ("his battery") and the plaintiff suffered injury, loss and damage.
The spraying of OC foam by the first and third defendants was captured on CCTV footage.
A copy of the CCTV footage is annexed to this Statement of Claim and the plaintiff relies on the contents of the annexed CCTV footage as if it were fully set out herein.

10. No point has been taken about the different descriptions of the sprayed substance in paragraphs 16 and 17.

11. Attached by fold back clip to the amended originating claim and amended statement of claim was a DVD disc in a plastic case marked "SC 847 of 2009 Helmhout v Apostoloff and Commonwealth of Australia CCTV Footage dated 12 June 2006".

12. Reynders was commenced by originating claim filed on 18 August 2010. That claim was requisitioned and a claim re-lodged on 24 August 2010 and accepted and issued, but which is taken to have been filed on the earlier date: r 6145(4) of the Court Procedures Rules.

13. The claim sought essentially the same relief as in the amended claim in Helmhout. The statement of claim pleaded that the declarations, damages and other relief sought were similarly based on an alleged assault on the plaintiff in the City Watchhouse by the first defendant with what was referred to simply as "OC" foam, presumably also Oleoresin Capsicum spray (which was the abbreviation defined and used in Helmhout). Again, comparable paragraphs in the statement of claim to those cited above from Helmhout were pleaded as follows:

After the plaintiff removed his jacket and placed it on the charge counter, the second defendant discharged a burst of OC foam from the can into the plaintiff's face.
The discharge of the burst of OC foam by the second defendant was captured on CCTV footage.
A copy of the CTV footage is annexed to the Statement of Claim.
The plaintiff relies on the contents of the annexed CCTV footage as if they were fully set out herein.

14. Again, a DVD disc in a plastic case was attached by fold back clip to the filed originating claim and statement of claim. It was labelled "SC 544 of 2010 Reynders v Commonwealth of Australia & Birch CCTV footage - 11 June 2006 referred to [sic] para 18 of the statement of claim".

15. Dempsey-Fiddes was commenced by originating claim filed on 23 August 2010 with a statement of claim attached. It sought similar relief to that claimed in Helmhout and Reynders. The claims again were based on a pleaded spraying of the plaintiff by "OC foam" in the City Watchhouse.

16. The statement of claim pleaded, comparably to the claims in Helmhout and Reynders, as follows:

Whilst the plaintiff was at the charge counter, the second defendant discharged a burst of OC foam into the plaintiff's face.
The discharge of the burst of OC foam by the second defendant was captured on CCTV footage.
A copy of the CCTV footage is annexed to this Statement of Claim. The plaintiff relies on the contents of the annexed CCTV footage as if they were fully set out herein.

17. In this case, two DVD discs, each in separate plastic covers, were attached by fold back clips to the originating claim and statement of claim and labelled "SC 549 of 2010 Dempsey-Fiddes v Commonwealth of Australia and Birch CCTV footage dated 31 March 2006 Disc 1 (or 2, as the case may be) of 2".

18. For completeness, I mention that my attention was drawn to one other similar action which had been commenced (by filing of originating claim) on 14 October 2009, against Ms Apostoloff and the Commonwealth but it does not plead any capture of the discharge of Oleoresin Capsicum spray by CCTV and no disc was attached to the statement of claim there.

19. In each matter, the Commonwealth has also filed a notice of intention to respond but no other party has.

20. In Helmhout, the Commonwealth has filed a defence, but it has not done so in any of the other matters. As to paragraphs 16, 17 and 18 of the amended statement of claim in Helmhout, the Commonwealth's defence pleads:

In relation to paragraph 16 the Second Defendant:

admits that the Plaintiff was sprayed in the face with Oleoresin Capsicum foam (known as OC foam); 2. does not plead to the allegation against the Third Defendant; and

otherwise denies each and every allegation contained in that paragraph.
In relation to paragraph 17 the Second Defendant admits that the incident the subject of this claim was captured on CCTV.
The Second Defendant does not plead to paragraph 18 as it is not a proper pleading and contains no allegations against the Second Defendant in any event.

21. Given that the issue of the appropriateness of paragraph 18 was not opposed nor even agitated before the Master, and the attitude then expressed by the Commonwealth's counsel, paragraph 15 of the defence is, perhaps understandable, notwithstanding that leave to include paragraph 18 in the amended statement of claim had been granted.

22. In each of Helmhout, Reynders and Dempsey-Fiddes, the Commonwealth issued, on 24 December 2010, an application in proceedings seeking that service of the application be dispensed with and that:

(a) in Helmhout, paragraph 18 of the amended statement of claim be struck out; and

(b) in Reynders, paragraphs 18 and 19 of the statement of claim be struck out; and

23. The grounds for the application were the same in each case, namely:

5. The pleading discloses no reasonable cause of action.

6. The pleading is embarrassing.

7. The pleading is an abuse of process of the Court.

24. Each application was supported by an affidavit sworn that day. Apart from deposing that the "CCTV footage related to the subject of these proceedings" had, in each case, been provided by the solicitors for the Commonwealth on named dates to the plaintiffs' solicitors and that a copy of the DVDs referred to above (at [11], [14] and [17]), attached to the (amended) statement of claim, was "ultimately" provided to the Commonwealth's solicitors, it is not necessary to refer to the contents of the affidavits. On objection, I struck out paragraphs 9 and 10 in each affidavit as amounting to submissions and not evidence.

25. It is, of course, usually unnecessary to file an affidavit in support of an application to strike out a pleading as disclosing no cause of action: Attorney-General of Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch D 274 (at 278); Wenlock v Maloney [1965] 2 All ER 871 (at 873 and 874) .

26. In this case, however, the two matters I have referred to (at [24]) are relevant to the issues as they were argued in the application.

27. In each matter, Ms L Rafferty appeared for the applicant, the Commonwealth, and Mr S Hausfeld appeared for each plaintiff. There was no appearance for any other party. I was not informed of whether any other party had been served with the (amended) originating claim. None had filed a notice of intention to proceed. As such, there was no other active party to any of the proceedings. See the definition of "active party" in the Dictionary to the Court Procedures Rules.

28. As parties to proceedings who or which are not active parties are not required, except in cases not here relevant, to be served with applications in proceedings (r 6008(2) of the Court Procedures Rules), there was no need to make the order dispensing with service.

29. In addition, however, Ms Adrienne Francis sought leave to be heard. She is a journalist apparently an employee of the Australian Broadcasting Corporation (ABC). Ms Francis handed up a letter authorising her to act in the application on behalf of that Corporation. The letter was signed by a person who described himself as "Chief of Staff ABC News Canberra".

30. There were two issues for consideration here: could Ms Francis appear for the ABC and could the ABC or Ms Francis appear in the hearing of an application in proceedings as neither were parties?

31. As to the first issue, I declined to permit Ms Francis to appear for the ABC. The general position as to whether persons who are not admitted as lawyers can appear for corporations was set out by the Privy Council in O'Toole v Scott [1965] AC 939, where the Board referred (at 952) to:

... the general principle that, subject to usage of statutory provisions, courts or tribunals may exercise a discretion whether they will allow any, and what persons, to act as advocates before them ...

32. Though that case was concerned with inferior courts, the Board held (at 959) that:

... the discretion is not conferred by statute, but is an element or consequence of the inherent right of a judge or magistrate to regulate the proceedings in his court.

33. Initially, there seemed to be some reluctance in Australia to permit unqualified persons to act for corporations (Equitable Life Assurance Society v Cutter (1887) 4 WN (NSW) 60 and Re Education Pty Ltd [1963] NSWR 1340), but this may have been because a company cannot appear as a "litigant in person" which now seems clear.

34. The High Court, however, had expressed a far more generous position when permitting the Secretary of a Union to address it on the Union's behalf in Federated Engine-Drivers and Firemen's Association of Australasia and Ors v Broken Hill Pty Co Ltd and Ors [1913] HCA 71; (1913) 16 CLR 245. Griffith CJ said (at 249) "[b]ut every Court can allow anyone to appear" and the other justices, Barton, Isaacs and Higgins JJ, delivered concurring judgments.

35. The real question, as identified by the Privy Council, is whether a corporation may be represented by an unqualified advocate, and in this, the Australian position has now followed that of the Privy Council. See Hubbard Association of Scientologists International v Anderson and Anor [1972] VicRp 37; [1972] VR 340 where Gowans J (delivering judgment for the court) held (at 342):

The true position would appear to be that the general rule is that any court can, in the exercise of control over its own proceedings, allow itself to be addressed in a proper case by any person it considers a proper person to be allowed audience.

36. It is true that, in that case, the court declined to allow an unqualified person to speak on behalf of the company because it adhered (at 344):

... to the well-established practice that a company should be allowed to speak to the Court only through a legally qualified person, founded as that practice is on the belief that any person chosen must be regarded as unsuitable for the task unless he has been accorded recognition by admission to practise.

37. Among the considerations that led the court to that view included the consequences of such an approach which, it was thought, might "destroy the whole administration of justice in these courts". A little less apocalyptically, the court also identified what are quite significant issues when it said (at 343):

In some fields the principle of allowing audience to non-professional advocates has been sanctioned, as is the case in proceedings under the Commonwealth Conciliation and Arbitration Act, but the classes of questions that arise in the Supreme Court-and this is particularly so in proceedings coming before the Full Court-demand that full technical assistance be provided for the Court in its task of administering justice according to law. There are other considerations which were adverted to by the House of Lords when reaffirming its rule of practice in Tritonia Ltd v Equity and Law Life Assurance Society, [1943] AC 584, at p 587; [1943] 2 All ER 401. Lord Simon, LC, said: "Such a rule, limiting a right of audience on behalf of others to members of the English or Scottish or Northern Irish Bars, secures that the House will be served by barristers or advocates who observe the rules of their profession, who are subject to a disciplinary code, and who are familiar with the methods and scope of advocacy which are followed in presenting argument to this House".

38. It is to be noted that the court identified this as an "established practice". As a matter of practice, of course, it can be varied over time and exemptions provided. Thus, in Molnar Engineering Pty Ltd v Burns [1984] FCA 232; (1984) 3 FCR 68 (Molnar) the Federal Court held that in an appropriate case, a director of a company could appear as agent for the company and address the court, largely because there was a provision for the court to exercise a discretion about that in the Rules of the Court. The court there declined to overturn the trial judge's decision, however, to refuse to exercise the court's discretion in favour of permitting the director to appear.

39. This decision has been followed in a number of cases. In ACT General Cleaning Company Pty Ltd v Naoum [1996] FCA 1560; (1996) 67 FCR 361, the Full Court of the Federal Court, when appellate court for this Court, construed the rules as giving the court a discretion to permit a director to appear and speak for a company and overturned a decision of the trial judge not to do so.

40. This was not the first such occasion a director had been given leave to appear for a company; in Commonwealth Bank of Australia v Individual Homes Pty Ltd (1994) 119 ACTR 1, it was noted that leave had earlier been granted for this. These show authority and practice in this area.

41. An example of where a statute has been held to have denied the court such a discretion is Co-operative Property Development of Australia Ltd and Ors v Mount and Ors (1980) Tas R 7 (at 13-14).

42. Under the Court Procedures Rules there is such a discretion given by r 30(4) which provides:

(4) A corporation may start and carry on a proceeding in the Supreme Court -

(a) by a solicitor acting for the corporation; or

(b) with the court's leave, by an officer or employee of the corporation authorised by the corporation to represent it.

43. The question, then, is not whether such discretion is exercisable, but how the discretion should be exercised.

44. In Molnar, the court was moved to refuse leave particularly because of the fact that the proceedings involved "difficult and complex legal questions of fact and law". Keely J, summarising what had earlier been said by Smithers J (at 74-75) indicated matters that would be relevant to the consideration of the discretion when his Honour said (at 80-81):

I agree with Smithers J that the discretion is to be exercised judicially according to the requirements of justice and that it must be exercised in favour of a company where there is sufficient reason; further that one reason likely to be advanced is that the company neither has, nor has access to, the funds required to engage legal practitioners. I also agree with him that leave should be granted where, having regard to the necessary or reasonable commitments of the company, the appropriation of funds to engage legal practitioners for the litigation in question would create financial difficulties with which the company could not - or with which it ought not be required to - cope and that in this connection the ability of the company to retain and pay its staff may well be relevant. I also agree that in the present case it is relevant that Mr Molnar is the inventor of the hoist under consideration in the proceedings, but I would prefer not to express an opinion as to whether, in considering the grant of leave to a company, the identity of the shareholders or the spread of the shareholding is relevant.

The learned trial judge accepted evidence that Mr Molnar, if granted leave to appear on the company's behalf would "be fully authorised to act for and bind the company in the course of [the] proceedings until their conclusion".

45. More recently, in Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149, a case involving an application for an unqualified person to represent not a corporation but another natural person, Stein JA (with whom Mason P and Shellar JA agreed) identified from a consideration of the authorities the "themes or principles" (at 162-163) which "are relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear". These were:

(b) genuine difficulties of the unrepresented party, which would include language difficulties of the unrepresented litigant (not relevant here), emergency situations and difficulties of obtaining representation through impecuniosity or otherwise;

(c) the unavailability of disciplinary measures and a duty to the court by lay advocates, including the possibility of costs orders which may be made against lawyers but possibly not against law advocates, the duty of candour and not knowingly misleading the court which may not be imposed on the lay advocate and the absence of training and experience in lay advocates;

(d) protection of the client and opponent, because and, perhaps, lay advocates are unqualified, unaccredited and uninsured and owe an unclear or, perhaps, minimal duty to the unrepresented party;

(e) lay advocates more likely appear in inferior courts and tribunals where the issues may not be so complex, suggesting that higher courts should be chary of granting leave; and

(f) the interests of justice, which includes the public interest in the effective, efficient and expeditious disposal of litigation in the courts.

46. It seems to me that, in relation to corporations, it is also relevant to have regard to whether the director is a sole director or the real force behind the company and where the lay advocate is an agent, including a director, regard should be had to the nature of the holding of equity capital in the company. Despite what was said by Keely J in Molnar, the weight of authority seems to suggest that this is a relevant factor.

47. Clearly, also, the court must be satisfied that the unrepresented party is consciously willing to be bound by the forensic decisions taken by the lay advocate.

48. Taking all these matters into account, it did not seem to me appropriate for Ms Francis to be given leave to represent the ABC.

49. It is true that this was a matter brought on at short notice, though the plaintiff was able to secure legal representation by counsel. The size and nature of the ABC do not suggest that it would have difficulty in securing representation. While I do not doubt the genuineness of the letter of authority handed up by Ms Francis, or of the sincere belief of the author in his authority to make it, I am not able to say that the author is a person who has the actual or ostensible authority to permit Ms Francis to act in the way that a lay advocate must on behalf of the ABC and, as an advocate, bind it in the proceedings. I am simply ignorant of the facts on which I would have to know to decide that.

50. It is also relevant that this was an interlocutory application about pleadings and that the ABC was not a party to the proceedings. As I understood it, Ms Francis merely wished to make submissions on issues related to open justice, access by the media to the courts and the like. Had the application been for a suppression order, it appears that the ABC should have been granted leave: R v Pomeroy: The Herald and Weekly Times Intervening [2002] VSC 178 (at [8]).

51. In the circumstances, it was not, in my view, appropriate for Ms Francis to be granted leave to appear for the ABC.

52. That, of course, did not end the matter. I could, and did, allow Ms Francis to appear on her own behalf as a journalist, a person employed in the media industry, as an amicus curiae to make such submissions as she saw fit.

53. Ordinarily, only parties will be heard in proceedings. That means that a court will determine the disputes that are brought before it by the parties to that dispute and who choose (or are required) to have the dispute determined by the court. Nevertheless, as the Federal Court put it in United States Tobacco Company v Minister for Consumer Affairs and Ors [1988] FCA 213; (1988) 20 FCR 520 (at 534):

... a court has an inherent or implied power, exercised occasionally, to ensure that it is properly informed of matters which it ought to take into account in reaching its decision. Particularly is this so in judgments which may affect the community generally or persons other than the parties who are before it.

54. The position of amicus curiae was addressed by Brennan CJ in Levy v State of Victoria and Ors (1997) 189 CLR 579, where some persons were permitted so to act and others were not. His Honour said (at 604-605):

The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted. In Kruger v The Commonwealth, speaking for the Court, I said in refusing counsel's application to appear for a person as amicus curiae:

As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case. The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application.

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.

(Footnotes omitted.)

55. The position is different from that of an intervener. I dealt briefly with the differences between the two in Hakimi v Legal Aid Commission (ACT) (2009) 227 FLR 462 (at [46] to [50]). See also United States Tobacco Company v Minister for Consumer Affairs & Ors (at 534-535); Levy v State of Victoria and Ors (at 600-605); Re Medical Assessment Panel; Ex parte Symons [2003] WASC 154; (2003) 27 WAR 242 (at [16] to [23]); Wilson v Manna Hill Mining Company Pty Ltd [2004] FCA 1663 (at [87] to [105]).

56. There is no case here for Ms Francis (or, indeed, the ABC) to intervene in the proceedings. In the light of the context, which I discuss below (at [65]-[73]), there seemed to me to be a case for her to be permitted to act as amicus curiae.

57. In National Australia Bank v Hokit Pty Ltd and Ors (1996) 39 NSWLR 377, Mahoney P set out (at 380) three questions that a court should address before deciding an application for a person to intervene as amicus curiae (as opposed to intervening as an intervener):

... whether the court has power to grant the application; (if it has) whether it should grant the application in the particular case; and (if it should) what form of intervention should be permitted and under what conditions.

58. His Honour then identified four matters that need to be considered when deciding the second question, whether to grant the application in a particular case. His Honour said (at 381):

Whether leave to intervene should be granted must be decided having regard to all the circumstances of the instant case. However, ordinarily four matters at least require consideration: whether the intervention is apt to assist the Court in deciding the instant case; whether it is in the parties' interest to allow the intervention; whether the intervention will occupy time unnecessarily; and whether it will add inappropriately to the costs of the proceeding.

59. As to the first question, I am satisfied, for the reasons given by Kirby P (at 532-533) in Breen v Williams (1994) 35 NSWLR 522, that the court has power to permit Ms Francis to appear as amicus curiae.

60. It appears that she has an interest in the question of access by the media to court documents and the principle of open justice. As will appear, this was a lurking issue in the case which neither party wished to address, it appeared, nor did address.

61. While the Commonwealth opposed her intervention, the plaintiff supported it. It was clear that her participation would not occupy time unnecessarily and would not add inappropriately to the proceedings.

62. Accordingly, I granted the application for Ms Francis to remain at the bar table and address me.

63. As to the form of her participation, it was simpler and more efficient for Ms Francis to address me after the parties had done so and then to give the parties an opportunity to comment on her submission. This is the course I took. In the end, given the nature of the argument on the applications, her submissions were brief and limited to supporting open justice, a value that cannot be in doubt and that the court should respect. I took her submissions to be opposing the relief sought.

64. In the face of counsel for the plaintiffs expressly declining to seek an adjournment, I did proceed notwithstanding that there had been short service of the application in proceedings in each matter.

65. Before addressing the submissions of the parties, it is necessary to paint the context in which this application was made.

66. Despite Helmhout having been commenced in 2009, there appeared, on the front page of The Canberra Times on 24 December 2010 (as though it was a new story) the lead story by the publication's court reporter about these three proceedings. The headline (in large type) read "Class action on police 'torture'" and other headings included "Landmark ACT legal action", "Capsicum foam abuse claim" and "Exclusive".

67. The story referred to "unprecedented claims of negligence, systemic abuse and police misconduct on behalf of eight clients". I was only aware of the four claims referred to above.

68. The story was accompanied by four pictures apparently showing the police officers in these proceedings in the process of what appears to be spraying substances into the faces of unidentifiable males dressed in civilian clothes while, in a number of the pictures, other police officers look on.

69. Of course, there are a number of problems that can be identified with the story. For example, the proceedings are not what lawyers call and are commonly known as "class actions". See Grave G, Adams K, Class Actions in Australia (Sydney: Lawbook Co, 2005) at pp 2-6 ([1.100]-[1.160]); Cashman P, Class Actions Law and Practice (Sydney: Federation Press, 2007) at p 7 ([3.2]).

70. There was no indication from where the paper obtained the photographs. They may have been used as exhibits in criminal proceedings, for both police officers, who were named as defendants, had been prosecuted; see Lukatela v Apostoloff [2009] ACTSC 167 and Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1. If the photographs were tendered and made exhibits, they would ordinarily be available to the media to examine and copy: R v Xu (No. 1) [2005] NSWSC 73; (2005) 152 A Crim R 17 (at [17] to [31].

71. In each proceeding, the DVDs, being attached to and, therefore, effectively part of the (amended) statements of claim, are, under r 2903 of the Court Procedures Rules, available for inspection. The rule permits copies to be taken of the documents filed in the registry. That is usually done by using (and paying for the use of) a photocopier provided by the court. It is by no means clear how copying of a DVD would be effected. In other courts copying of video material which had been admitted into evidence has been permitted: R v O'Grady [2000] NSWSC 1256 (at [11]). Indeed, the photographing of a gun admitted into evidence has been permitted: R v Elomar and Ors (No. 3) [2008] NSWSC 1443 (at [9] to [31]).

72. Whatever the mechanism for such inspection, it appears, unlike an exhibit, any person may inspect and copy a filed document without the leave of the court being required. Thus, although the DVDs had been filed in the proceedings many months ago and, apparently, no-one had previously inspected them, the publication of the article in The Canberra Times appears to have focused the minds of the solicitors for the Commonwealth to the, no doubt, unforeseen consequences of the annexing of the DVDs referred to in the relevant paragraphs of the (amended) statement of claim, namely that they can be inspected and copied.

73. Thus, while the application in proceedings in each case was drafted as to seek amendment to the pleadings, and while neither party, in argument, directly addressed the issue of access to the DVDs attached to each (amended) statement of claim by the media or anyone else, the plaintiffs did not oppose the urgent hearing or challenge any basis for it and this, together with the presence of the ABC, gave a particular and obvious context for the applications.

74. I shall call the paragraphs the subject of the applications in proceedings that are before me "the challenged paragraphs".

75. The Commonwealth submitted that the challenged paragraphs in each (amended) statement of claim were embarrassing and failed to comply with the rules of pleading in that they were not material facts and were, in fact, matters of evidence. In this, it was relying on r 406(1)(b) of the Court Procedures Rules which provides:

(1) Each pleading must -

...

(b) contain a statement in a summary form of the material facts on which the party relies but not the evidence by which the facts are to be proved ...

76. The submission was that the challenged paragraphs were not required to plead the relevant causes of action. They, and the annexed DVDs which were referred to in them, were matters of evidence and should not be pleaded. That rule of pleading is of long antiquity: Williams v Wilcox and Anor [1838] EngR 305; (1838) 8 Ad & E 314 (at 331); [1838] EngR 305; 112 ER 857 (at 863); Philipps v Philipps (1878) 4 QBD 127 (at 133). It is still followed today: Allianz Australia Insurances Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 (at [18]). The distinction between particulars and evidence can be hard to make at times: Sims v Wran [1984] 1 NSWLR 317 (at 321-322).

77. Initially, the plaintiffs submitted that this application was not in reality a pleading argument but an application for a suppression order. They did not, however, propose to argue on that basis.

78. The plaintiffs conceded the primary claim by the Commonwealth and did not seek to deny that the challenged paragraphs were not material facts and were evidence.

79. Although they referred to the leave granted by the Master in Helmhout, they did not submit that the Commonwealth was estopped from making the application and, in the circumstances, that seems correct.

80. Rather, they submitted that the paragraphs were intended to provide particulars of the claim. I was told that the Commonwealth had previously sought particulars of the facts, acts, matters and circumstances of each alleged assault and, it was said, the DVD gave the circumstances of the particular spraying in each case. I was not shown any request for particulars.

81. That the paragraph was included as a part of the pleading itself rather than separated out to show that it was particulars was said to be inconsequential. I accept that such an objection would probably not justify striking out; indeed, r 410 of the Court Procedures Rules arguably prohibits such an application, though see [126] below.

82. Mr Hausfeld submitted that r 433 of the Court Procedures Rules was authority for what had been done. That rule is in the following terms:

433 Pleadings - how particulars must be given

(1) The particulars to be given by a pleading must be stated in the pleading or, if that is inconvenient, in a separate document mentioned in, and filed and served with, the pleading.

(2) Further particulars may be given by correspondence.

(3) A party giving further particulars must file a copy of the particulars.

83. He referred to Part 1 of the Dictionary to the Legislation Act 2001 (ACT) which, by s 144 of that Act, applies to all Acts and Statutory Instruments, the latter, of course, including the Court Procedures Rules. That Dictionary defines "document" as follows:

document means any record of information, and includes -

(a) anything on which there is writing; or

(b) anything on which there are figures, marks, numbers, perforations, symbols or anything else having a meaning for people qualified to interpret them; or

(c) anything from which images, sounds, messages or writings can be produced or reproduced, whether with or without the aid of anything else; or

(d) a drawing, map, photograph or plan.

84. Clearly, therefore, he submitted, and I accept, the DVDs are documents within the meaning of r 433(1). That does not mean, of course, that any document becomes the provision of particulars.

85. Mr Hausfeld accepted that the material in the DVDs constituted evidence but submitted that this was a legitimate method of providing particulars and that, on a discretionary basis, evidence had been permitted to remain in pleadings where it was of no consequence.

86. As there is no real contest but that the challenged paragraphs are not material and contain (especially in the DVDs attached) evidence, the only real question is whether they constitute particulars. If not, then the rules of pleading are clear and they should not be included.

87. Not everyone considers that this approach to pleading is a good one. As long ago as 1975, Blackburn J (as his Honour then was), writing in the Australian Law Journal (Blackburn RA, Updating Court Procedures for the 1980s (1975) 49 ALJ 374) suggested (at 377) that the statement of claim:

... ought to be a larger and more elaborate document, which contains not only the facts leaded as they are now, but the plaintiff's contentions of law, and the names and addresses of his witnesses, together with the substance of their evidence.

88. Not everyone agreed. I have to say, I share some of the criticisms made of such a proposal by Mr J Davies QC (as his Honour then was) in Updating Civil Court Procedures for the 1980s (1975) 49 ALJ 380) (at 383-384).

89. Nevertheless, these are the present rules and, in my view, there are good reasons for approaching the pleadings in this way.

90. Sir Jack Jacob and Mr I Goldrein, in their important work, Pleadings: Principles and Practice (London: Sweet and Maxwell, 1990), suggest that the rationales for excluding matters of evidence from being pleaded are:

(a) pleadings would otherwise become long and obtuse, with each party stating his own account or version of the facts;

(b) the pleadings would have the effect of confusing instead of clarifying the issues or questions between the parties.

91. The latter can certainly be true. Evidence can be ambiguous, uncertain and unclear. It can also contain contradictions.

92. As an example, in one of the photographs published in The Canberra Times, it is not at all clear that the spray is reaching the face of the civilian. Thus, this "evidence", which would provide elements of proof that spraying occurred, would not provide the nature of the case if, as appears from the pleadings, the plaintiffs each allege they were sprayed in the face. That may still be able to be proved, but the photograph does not give the material fact or a particular of it. Of course, I do not know whether that photograph is claimed to be of one of the plaintiffs or not.

93. As another example, an Act of Parliament may well be the basis on which a plea is made but reference to the whole Act may not identify the precise nature of the case on which specific reliance is made. See Sportsbet Pty Ltd v State of New South Wales and Ors (No. 2) [2009] FCA 762 (at [9] and [10]). While this is not a matter of evidence, it illustrates how providing the evidence does not necessarily assist in identifying the issues for it leaves the opponent to the pleader to trawl through the material trying to decide what is the case to be made and what is not.

94. In this, the particulars have an important part to play. As the High Court said in Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 (at 664):

Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1916] HCA 81; (1916) 22 CLR 490, at p 517; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron [1936] HCA 13; (1936) 54 CLR 572, at pp 576-577); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195, at p 207). But where there is no departure during the trial from the pleaded cause of action, a discomformity [sic] between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at pp 111, 112, 127), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437, at p 446; 50 ALJR 666, at p 668).

95. To the same effect are the comments in the earlier case of Bailey and Ors v Federal Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214. As Gibbs J said (at 219):

Particulars fulfil an important function in the conduct of litigation. They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds.

96. Importantly, Mason J pointed out (at 221) particulars can still be required to be provided even where "all the relevant facts are within the knowledge" of the other party.

97. Jacobs J noted (at 221) that particulars "do not constitute a pleading and do not ordinarily define issues of law". They are, he pointed out, "essentially particulars of fact".

Helmhout v Apostoloff & Ors; Reynders v Commonwealth of Australia & Anor Dempsey-Fiddes v Commonwealth of Australia & Anor [2011] ACTSC 2

At a glance

Court

Decision date

Source

Judgment (261 paragraphs)

Helmhout v Apostoloff & Ors; Reynders v Commonwealth of Australia & Anor Dempsey-Fiddes v Commonwealth of Australia & Anor [2011] ACTSC 2 (11 January 2011)

Legislation Cited (6)

Cases Cited (25)